Justice for Mathieu Lefevre

Change is afoot at the New York Department of Motor Vehicles. Following a meeting with advocates for crash victims, the DMV scheduled safety hearings to determine whether three drivers who caused fatal crashes would lose their licenses. The first of the three — concerning the death of three year-old Allison Liao — saw several welcome improvements in the safety hearing process, including in-person testimony from investigating police officers, presentation of video evidence, and an unusual degree of press access.

A second safety hearing, scheduled for January 27, will address the death of artist Mathieu Lefevre, killed in 2011 while cycling home in East Williamsburg. Lefevre’s parents’ demands for transparency and justice from NYPD crash investigators led to increased oversight of NYPD and jump-started the local Vision Zero movement. A DMV order suspending the driver’s license was mysteriously reversed, and the tickets issued to the driver were dismissed by a DMV judge — just as in the Liao case.

Unless NYPD investigators attend the hearing and present the evidence of wrongdoing by the driver, Leonardo Degianni (summarized below), he will receive no penalty or sanction at all — not even a traffic ticket. The Lefevre hearing presents an important test of whether NYPD and DMV are committed to ensuring meaningful consequences for sober reckless drivers who kill.

Degianni’s Involvement in the Crash

Mathieu Lefevre was struck by the driver of a 28-ton crane truck, who left the scene. Based on surveillance video recovered from a nearby warehouse and blood evidence found on the front bumper of the truck, NYPD investigators identified the truck as one driven by Leonardo Degianni. But Degianni has refused to watch the video, and his statements suggest he plans to escape responsibility for the crash by claiming that police misidentified the truck.

The NYPD detectives who investigated the crash can readily prove that the truck was Degianni’s. Although the video is not of the best quality, the detectives who collected it can establish that it contains date and time metadata consistent with the crash. Moreover, investigators can testify that they found blood on the driver’s side of the front bumper of the truck just hours after the crash. Without this testimony, the judge at the hearing will have to make an identification based on pictures and the video:

Degianni’s Failure to Signal

The crash video is of sufficient quality to show flashing lights, such as the pedestrian crossing signals at the intersection of Morgan and Meserole. Testimony by Degianni and the truck’s owner establishes that the truck had more than one working directional signal on its right hand side, but none can be seen in the video prior to or during the truck’s right turn (at time stamp 23:56:27). Yet Degianni testified at his deposition that the ticket he was issued for failing to signal a right turn was dismissed by the DMV for lack of evidence — at a hearing where the Lefevres were not present and of which they had no notice.

The front and rear of the crane truck Leo Degianni was driving when he killed Mathieu Lefevre.

The judge at the January 27 safety hearing will be asked to determine whether Degianni made a right turn into Lefevre without signaling. Significantly, the safety hearing judge is required to make that determination if the evidence indicates that a failure to signal was “more likely than not,” rather than the “clear and convincing proof” required to sustain a traffic ticket. If the NYPD detectives who investigated the crash appear at the hearing and are permitted to give testimony and present the video, there is ample evidence to conclude that Degianni failed to signal, causing the collision.

Degianni’s Failure to Turn Properly

New York Vehicle and Traffic Law states: “Both the approach for a right turn and a right turn shall be made as close as practicable to the right hand curb or edge of the roadway.” But as shown in the video, Degianni turned from the center of the roadway; close observation of his right rear tire demonstrates that he could have made the turn significantly closer to the right curb. Combined with his failure to signal, this improper approach created a sudden and unexpected danger which claimed Lefevre’s life.

Degianni’s Failure to Use Due Care

Degianni was also issued a ticket for failing to use due care to avoid striking a bicyclist under VTL Section 1146. Section 1146 holds that, even when a driver has the right of way, he has a duty to use due care to avoid striking a pedestrian or cyclist if possible. Degianni testified that this ticket also was dismissed.

There is substantial evidence which, if presented to the judge, would demonstrate that Degianni failed to use due care — or much care at all — to avoid striking Lefevre. It can be inferred from the video that Degianni passed Lefevre while traveling south on Morgan before stopping at the intersection where the crash occurred. Degianni should have been aware of Lefevre’s presence on the road. As shown in the diagram below and in the video, the 19-foot wide north- and south-bound roadways of Morgan Avenue are each wide enough to accommodate two lines of traffic, and so Lefevre’s approach to the right of Degianni’s truck was lawful — another reason Degianni should have anticipated Lefevre’s presence. Degianni’s truck was equipped with convex side mirrors that would have shown Lefevre as he approached from the rear. Yet Degianni testified that he never saw Lefevre. Due care required that Degianni keep a lookout for other traffic and see what was there to be seen, but he did not.

NYPD’s crash scene diagram shows the distances Lefevre and his bicycle were dragged.

Degianni’s Leaving the Crash Scene

The judge at the safety hearing should consider evidence that Degianni, who left the scene of the crash, knew or should have known that he had struck Lefevre. That evidence includes the facts that Lefevre was crushed by the front driver’s side wheel of the truck, leaving blood on the front bumper; that Degianni dragged Lefevre more than thirty feet, and his bicycle more than 170 feet, following the initial impact; and that Degianni is shown on yet another video closely studying the front bumper of his truck just minutes after the crash.

If police investigators present this evidence at the hearing, it should be sufficient to sustain a finding that Degianni more likely than not had “reason to know” that he had struck Lefevre.

DMV safety hearings are open to the press and the public. The January 27 DMV safety hearing concerning Mathieu Lefevre’s death will be held in downtown Manhattan at 2 Washington Street, near Battery Place. Safe streets advocates are invited to attend to demonstrate their concern that NYPD present the necessary evidence, DMV review the evidence carefully, and that appropriate action be taken regarding Degianni’s driving privileges. If these things occur, there is reason to believe that DMV is stepping up to fulfill its critical mandate to review the driving privileges of reckless drivers in non-criminal cases.

Very glad DMV is holding these hearings, but I’m also looking to the agency to take actions that have consequences for these killer drivers. The DMV statement in November after the Allie Liao debacle (below) unequivocally said they would take action at the January 6 hearing, and yet ALJ Sidney Fuchs bizarrely, unexpectedly punted on actually making a decision with respect to that driver’s license. For the life of me, I can’t fathom why Fuchs was unprepared to rule.

DMV (via Gothamist): “…whenever a fatal accident occurs anywhere in the state, the DMV schedules a special safety hearing. That hearing for Mr. Abu-Zayedeha has been set for January 6. At that time, a determination will be made if Mr. Abu-Zayedeha has any culpability for the accident on October 6 that would result in any action being taken with regard to his driver license based on the Vehicle and Traffic law.”

In short, DMV has to do better on public safety here. Glad they’re holding the hearings; they need to have some consequences too. Hope they’ll adopt Families for Safe Streets list of safety reforms.

SteveVaccaro

Good and careful analysis of the DMV’s public statement. Unfortunately, there were a few inaccuracies in that statement, inclouding the one you mention.

Jesse

I am not out to exonerate the driver here, whose failure to signal was completely negligent, but what about the fact that Lefevre had no lights? Isn’t there a strong cultural presumption that if you ride without lights at night you’re kind of asking for it? I understand that this presumption comes from the misguided notion that the streets are for cars and that the burden of safety must fall on the cyclist, but it still exists.

The video shows not only this, but from what I can see, most of the drivers were maintaining a certain distance from the curb regardless of the presence of cyclists. They seem to be trying to stay close to the center line which indicates that they could pass someone on the shoulder without seeing them. So even I, a regular transportation cyclist in NYC, kind of believe the driver if he says he didn’t know anyone was there. And I even find it plausible if he says he didn’t know he hit someone given how big the truck is. And even when he did inspect the bumper, it doesn’t mean that he knew where he’d hit Lefevre. That said, it doesn’t excuse his not immediately reporting that to the police.

I mention this because (1) it seems like an obvious argument Degianni’s lawyer would make and (2) to make the point I always make in these articles that: it is very hard to use laws that are never enforced due to cultural bias to try to change culture. But I’m sure you know that better than anyone and you also have seen examples of when that form of advocacy succeeds. Also, whether these violations stand is not academic point in this case as I’m sure it helps in the civil suit.

None of this is to excuse the driver’s negligence or to downplay the tragedy for Lefevre and his family. I am one of the people who believe that drivers in the city should be held to a higher standard than they already are and that every turn should be made as if there were someone in the shoulder or crosswalk whether you see them or not. But I know I am in the minority.

It may be that the driver didn’t know he struck someone. The law in question makes him guilty of hit and run if he knew, or had “reason to know,” that he struck someone and didn’t wait at scene/report it to police.

I think the video in the case is instructive on many levels, beyond simply showing what Degianni did wrong. Even though Lefevre had the right to proceed as he did, the ability to safely exercise that right depended upon the driver following the law. The driver didn’t and Lefevre paid for it with his life. Having watched this video more times than I care to say, it certainly has informed the way I ride my bike in traffic, and how confident I am about asserting my right of way. Until drivers can be relied upon to follow the laws, cyclists have to constantly make hard, high-stakes and highly personal decisions about the extent to which they will exercise their supposedly equal right to the road.

With respect to the DMV proceeding, the issue will be whether the driver’s actions were so negligent to justify action against his license. Except in gauging the reasonableness of the driver’s actions, the cyclists’ actions aren’t being assessed.

With respect to civil litigation, New York is a “comparative fault” state. If a jury decides the liability in this case, it can decide to apportion all of the fault to Degianni, or less than all, allocating some portion to Lefevre.

Tonyguy

It would appear from the lack of evidence to the contrary, that the driver of the truck failed to signal the turn. It would seem a flashing signal light from the front fender, or rear of the truck would be detected by the camera. As to the positioning of the truck prior to and during the turn, the trucks wheelbase is a consideration as to what is “practicable” in proximity to the turn, and clearing of parked cars on either side of the intersection (the presence of same on the side street is out of camera view). The video of the driver exiting the vehicle is ambiguous, showing the driver to check once during the parking process for proximity to the curb and distance behind, and then after parking, it would appear he exits the vehicle, walks around the front (shortest distance) to the right side door to lock it and then walk away. One is inclined to believe that if the driver suspected evidence of a crime, he would make an inspection and remove same as soon as practical, and not worry about properly parking the truck curbside. As one who drove commercial boom trucks, it would not be unreasonable to hear and sustain constant noises and vibrations generated by the road surface, lack of security of the equipment/ rigging and stiffness of the suspension. The bicyclist overtook and attempted to pass the truck on the right on a single lane roadway where facilities have been placed to encourage thru traffic to occur to the right of turning truck traffic… To say the driver of the truck should have expected the appearance of this or any other bicyclist to appear on the right might suggest a lack of awareness. The same could be said for the cyclist who chose to overtake and pass a truck in an intersection. http://iamtraffic.org/resources/interactive-graphics/what-cyclists-need-to-know-about-trucks/

Tonyguy

The window of opportunity and ability for a truck driver to detect a cyclist(s) overtaking on the right is extremely limited and cyclist should avoid do so at all costs. A United Kingdom demonstration, reverse image for US applicability): http://youtu.be/Y9E1_1M-qhU

Maggie

I see now the DMV did revoke in that case. Very glad they took action.

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